San Diego Teachers Association (Hernandez) (PERB 0902E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
REYNALDO 	HERNANDEZ,
Charging 	Party,
v.
SAN DIEGO TEACHERS ASSOCIATION,
Respondent.
)
)
) 	Case No. 	LA-CO-559
PERB 	Decision No. 	902
September 	19, 	1991
)
)
)
)
)
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Appearances: 	Reynaldo Hernandez, 	on his own behalf; 	Robert E.
Lindquist, 	Attorney, 	for San Diego Teachers Association.
Before Hesse, 	Chairperson; 	Shank and Carlyle, 	Members.
DECISION AND 	ORDER
CARLYLE, 	Member: 	This case is before the Public 	Employment
Relations 	Board 	(Board) 	on appeal 	by 	Reynaldo 	Hernandez
(Hernandez) 	of 	a Board agent's dismissal 	(attached hereto) 	of
his 	charge 	that 	the 	San Diego 	Teachers Association 	(Association)
violated the Educational Employment Relations Act 	(EERA), 	section
3 543.6(a), 	(b) 	and 	(c)1. 	We have reviewed the Board agent's
dismissal and, 	finding it to be 	free of prejudicial 	error, 	adopt
it as 	the decision of the Board 	itself.
On appeal, 	Hernandez 	contends 	that 	the Board agent 	failed to
address 	his 	charge 	that 	the 	collective 	bargaining 	agreement 	(CBA)
cost 	of 	living 	adjustment provisions 	violate 	his 	constitutional
J
________________.)
1EERA	EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
In his warning 	letter, 	the 	Board agent 	incorrectly 	cited EERA
section 3543.5(a), 	(b) 	and 	(c) 	as the alleged violations in this
case. 	However, 	the Board agent's 	determination and dismissal was
consistent with a 	review of this 	case 	as 	a violation of 	EERA
section 3543.6(a), 	(b) and (c).

right 	to vote 	free 	from undue governmental 	interest. 	Hernandez
argues that his conscience impelled him to vote for a gubernatorial
candidate 	in the November 	1990 	election who had 	not promised
a 	cost-of-living adjustment, 	while the operation of the CBA
impelled him to 	vote 	for 	the 	candidate who 	had promised 	such 	an
adjustment. 	Section 	3543,2 which defines 	the rights 	of 	employees
under EERA, 	does 	not guarantee employees 	the right 	to vote 	in
2EERA 	section 	3543 	states:
Public 	school 	employees 	shall 	have the
right to form, 	join, 	and participate in
the 	activities 	of 	employee 	organizations
of 	their own choosing 	for the purpose of
representation on all 	matters 	of 	employer-
employee 	relations. 	Public 	school 	employees
shall also have the 	right to refuse 	to 	join
or participate 	in the 	activities 	of 	employee
organizations 	and 	shall have the right to
represent 	themselves 	individually 	in their
employment 	relations 	with 	the public 	school
employer, 	except that once the employees
in an appropriate 	unit 	have 	selected 	an
exclusive 	representative 	and 	it has 	been
recognized pursuant 	to 	Section 	3544.1 	or
certified pursuant to Section 3544.7, 	no
employee 	in that unit may meet 	and 	negotiate
with 	the public 	school 	employer.
Any 	employee 	may at 	any time present
grievances 	to his 	employer, 	and have 	such
grievances 	adjusted, 	without 	the 	intervention
of the exclusive representative, 	as 	long as
the adjustment 	is 	reached prior to
arbitration pursuant to Sections 	3548.5,
3548.6, 	3548.7, 	and 3548.8 and the adjustment
is 	not 	inconsistent with the terms of a
written agreement then in effect; 	provided
that 	the public 	school 	employer 	shall 	not
agree to 	a 	resolution of 	the grievance until
the 	exclusive 	representative 	has 	received
a 	copy of 	the 	grievance 	and 	the proposed
resolution and has 	been given the 	opportunity
to 	file a response.
22

general 	elections 	free 	from the 	influence 	of 	financial 	self-
interest.3
The unfair practice 	charge 	in Case No. 	LA-CO-559 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairperson Hesse 	and Member 	Shank 	joined 	in this 	Decision.
3The Government Code 	section cited 	in footnote 	1 	of 	the
warning 	letter should be 	section 3543.6(c).
w3

. STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
f) 	Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127	
PERS
July 	19, 	1991
•
Reynaldo 	Hernandez
Re: 	DISMISSAL AND REFUSAL TO ISSUE COMPLAINT, 	Unfair
Practice Charge No. 	LA-CO-559, 	Reynaldo Hernandez v.
San 	Diego 	Teachers 	Association
Dear Mr. 	Hernandez:
I 	indicated to you 	in my attached 	letter dated July 	5, 	1991,
that 	the 	above-referenced 	charge 	did 	not 	state 	a prima 	facie
case. 	You were advised 	that 	if 	there were 	any 	factual
inaccuracies 	or additional 	facts 	that would 	correct 	the
deficiencies 	explained 	in that 	letter, 	you 	should amend 	the
charge 	accordingly. 	You were 	further advised that 	unless 	you
amended the 	charge to 	state a prima 	facie 	case, 	or withdrew it
prior to July 	12, 	1991, 	the charge would be dismissed.
I 	have 	not 	received 	either 	a 	request 	for withdrawal 	or 	an amended
charge. 	I 	am therefore dismissing the 	charge based on the 	facts
and 	reasons 	contained 	in my July 	5 	letter.
Right 	to Appeal
Pursuant 	to Public 	Employment 	Relations 	Board regulations, 	you
may 	obtain 	a 	review of 	this 	dismissal 	of 	the 	charge by 	filing 	an
appeal 	to 	the Board 	itself within twenty 	(20) 	calendar days 	after
service 	of 	this dismissal 	(California Code of 	Regulations, 	title
8, 	section 32635(a)). 	To be timely filed, 	the original and five
copies 	of 	such 	appeal 	must 	be 	actually 	received by 	the 	Board
itself before the close 	of business 	(5:00 p.m.) 	or 	sent by
telegraph, 	certified or Express 	United States 	mail postmarked 	no
later 	than the 	last 	date 	set 	for 	filing 	(California
Administrative Code, 	title 8, 	section 32135). 	Code of Civil
Procedure 	section 	1013 	shall 	apply. 	The Board's 	address 	is:
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, CA 95814
If 	you 	file a timely appeal 	of 	the refusal 	to 	issue a complaint,
any 	other party may 	file with 	the 	Board 	an original 	and 	five
copies 	of 	a 	statement 	in opposition within twenty 	calendar days
following 	the date of 	service 	of 	the 	appeal 	(California 	Code 	of
Regulations, title 8, 	section 32635(b)).
...

Dismissal 	and 	Refusal
to 	Issue 	Complaint
LA-CO-559
July 	19, 	1991
Page 	2
Service
All 	documents 	authorized 	to 	be 	filed herein must 	also 	be 	"served"
upon all parties 	to the proceeding, 	and a 	"proof of 	service" 	must
accompany 	each 	copy 	of 	a 	document 	served upon 	a part
(_
 	y 	or 	filed
with the 	Board 	itself. 	(See California 	Code of 	Regulations,
title 	8, 	section 	32140 	for the 	required 	contents 	and a 	sample
form.) 	The document will 	be 	considered properly 	"served
,_ 	" 	when
personally 	delivered 	or 	deposited 	in 	the 	first-class 	mail 	postage
paid 	and 	properly 	addressed.
Extension of 	Time
A request 	for an extension of time 	in which to 	file 	a document
with 	the 	Board 	itself 	must 	be 	in writing 	and 	filed with 	the 	Board
at 	the 	previously 	noted 	address. 	A request 	for 	an 	extension must
be 	filed 	at 	least 	three 	calendar days 	before 	the 	expiration 	of
the 	time 	required 	for 	filing the document. 	The reques
L t 	must
indicate 	good cause 	for and, 	if known, 	the position of 	each othe
,_ 	r
party 	regarding 	the 	extension, 	and 	shall 	be accompanied 	by proof
of 	service 	of 	the 	request 	upon 	each party 	(California 	Code 	of
Regulations, title 8, 	section 32132).
Final 	Date
If 	no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal will 	become 	final when the 	time 	limits 	have 	expired.
Sincerely,	. .. . . .
JOHN W. 	SPITTLER
General 	Counsel
BY -
Thomas 	J. Allen
Regional 	Attorney
Attachment
cc: 	Robert E. 	Lindquist
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STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
July 5, 	1991
Reynaldo 	Hernandez
Re: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CO-559,
Reynaldo 	Hernandez 	v. 	San Diego Teachers Association
Dear Mr. 	Hernandez:
In the 	above-referenced 	charge, 	you 	allege 	that the 	San Diego
Teachers Association 	(Association) 	failed to represent you
fairly. 	This 	conduct 	is 	alleged to violate 	Government Code
sections 3543.5(a), 	(b) and (c)1
My 	investigation of 	this 	charge reveals 	the 	following 	facts.
You 	are 	employed by 	the 	San 	Diego 	Unified 	School 	District
(District) 	as 	a 	teacher of 	Spanish and physical 	education at 	the
secondary 	level, 	in a bargaining unit 	for which the Association
is the exclusive representative. 	On July 	1, 	1989, 	the District
and 	the Association 	entered 	into 	a 	collective 	bargaining
agreement 	for a three-year period ending June 	30, 	1992. 	The
agreement provides 	in Article VII 	("Wages"), 	Section 	1 	("Salary
Schedule"), 	Paragraph A, 	that the 	salary schedule 	shall' be
increased 	each year based on 	"the 	cost-of-living, 	COLA,
(inflation) 	adjustment 	funded by the 	state 	each year." 	The
agreement 	also provides, 	in Article 	IX 	("Health 	and Welfare
Benefits"), 	Section 2 	("Medical Benefits Plans"), 	for three
medical 	benefit plan options, 	including the Greater 	San Diego
Health Plan. 	The agreement also provides, 	in Article XIII
("Class 	Size"), 	Section 4 	("Secondary"), 	Paragraph B, 	"Academic
classes will 	average no more than thirty-six 	(36) 	pupils 	each,"
but 	in Paragraph C of the 	same 	section it provides, 	"Classes 	in
. 	. 	. 	physical education may exceed the average 	size established
for other classes." 	The agreement 	further provides, 	in Article
XVI 	("Organizational 	Security") 	for an agency 	fee, 	to be
implemented during 	the 	1991-92 	school 	year.
1As an 	individual, 	you 	actually do not have 	standing 	to
allege a violation of Government Code 	section 3543.5(c). 	Oxnard
Educators Association 	(1988) 	PERB Decision No. 	664.
2According 	to 	records 	of 	the 	Public 	Employment 	Relations
Board, 	of which official notice may be taken, 	the agreement was
ratified on November 29, 	1988.

Warning 	Letter
LA-CO-559
July 	5, 	1991
Page 	2
You allege 	that 	in the 	1989-90 	school year, 	you were made to
teach 	two 	academic 	classes 	in excess 	of 	the 	negotiated 	size 	limit
for classes. 	You allege that the Association 	is 	aware that 	this
is 	a 	common practice. 	You do not 	allege whether or how you
sought 	the Association's 	assistance with 	the 	situation 	in
1989-90.
You 	allege 	that 	sometime 	after August 	1989 	(apparently during 	the
1989-90 	school year), 	the Greater San Diego Health Plan went
bankrupt, 	leaving you with a medical bill 	for $108.00 	from August
1989 	that 	is 	still 	unpaid. 	You allege that 	the Association was
"negligent" 	in agreeing to 	the Greater San Diego Health 	Plan as 	a
medical benefit plan option, 	since 	it was 	"common knowledge" 	that
the 	plan was 	"not 	on 	sound 	financial 	ground."
You allege 	that 	in March 	1991 	the Association's 	board of
directors proposed a 	$1 	million or 	62% 	cut 	in 	secondary 	school
sports programs. 	The board of directors 	made this proposal
through 	a 	Staff 	Budget 	Committee 	advising 	the 	District 	on how to
cut the 	overall 	District budget by $37 	million. 	Ten of 	the 	16
members 	of 	the Association's 	board 	are 	from 	elementary 	schools.
The Association President has 	explained 	the proposal 	as 	follows:
This 	Staff 	Budget Committee wrestled with
many 	options 	to 	come up with the 	$37 	million
dollars 	in savings. 	At the same time, 	the
Superintendent's 	Cabinet 	Budget 	Committee
recommended to 	the 	Board 	of 	Education 	cuts
including 	terminating 	seventy-five 	jobs 	in
our bargaining unit. 	Nurses, 	and district
and 	career 	counselors 	totaling 	75 	positions
received 	layoff 	notices which, 	by Education
Code, 	had to be 	sent by March 	15.
Most of 	the budget decisions 	made 	so 	far are
NOT 	final 	and 	alternatives 	are 	being 	offered.
At 	a 	special 	meeting 	of 	the 	SDTA 	Board 	of
Directors, 	the evening before a 	crucial
meeting of the 	Staff 	Budget Committee, 	SDTA
took 	the 	position 	that 	NO 	BARGAINING 	UNIT
POSITIONS SHOULD BE CUT; 	however, 	as 	I have
mentioned, 	taking that position 	in a 	shared
decisionmaking 	mode 	prevents 	SDTA 	from 	simply
walking 	away without 	offering 	an 	alternative
to produce 	the money to keep the 	nurses 	and
counselors. 	Based on the priority that 	no
jobs 	be 	cut, 	the two major sources 	of 	funds

Warning 	Letter
LA-CO-559
July 5, 	1991
Page 	3
SDTA 	recommended were 	lowering 	the 	District's
year-ending balances 	by 	5 	million dollars,
thus 	lowering 	the 	amount 	of 	money 	in next
year's budget by 5 million dollars, 	and
cutting 	an additional 	$800,000 	from 	the
interscholastic 	sports programs. 	The rest of
the 	$37 	million consists 	of 	elimination of
management positions 	and 	some 	resource
positions, 	as well 	as unspecified classified
jobs. 	If the 	SDTA priority 	is 	implemented by
the Board of Education, 	no bargaining unit
member will 	lose 	his 	or her 	job 	and 	therefore
his 	or her primary 	source 	of 	income.
As 	elected 	leaders 	of 	SDTA, 	the board members
understand 	that 	you 	can't 	find 	$37 	million
dollars 	in the district without 	affecting
people. 	There 	just aren't 	enough dollars 	to
be 	found by cutting 	corners. 	To 	the 	SDTA
leadership, 	the question was, 	"What is a
higher priority: 	after 	school 	athletics 	or
nursing 	and 	counseling?"
Unfortunately, 	the discussion has been
reduced by 	some 	to 	an 	elementary vs.
secondary 	issue, 	with high 	school principals
calling 	for 	elementary prep 	time 	to 	be 	cut 	to
preserve after-school 	sports. 	The political
leaders who have presented us with a 	tax pie
that 	is 	too 	small 	are very 	gratified to 	see
us 	fighting 	among 	ourselves while 	allowing
them to 	escape 	the 	fact 	that are 	not 	funding
schools 	adequately.
You 	allege 	that 	the 	negotiated agency 	fee was 	to be 	implemented
on July 	1, 	1991. 	You allege that the amount 	initially deducted
was 	to be 	equivalent 	to Association dues. 	You also 	allege 	that
the Association 	"has 	sufficient data 	at 	its 	disposal 	to 	ascertain
a 	close 	approximation of what 	the proper 	service 	fee would 	be."
You 	filed your unfair practice 	charge on May 	24, 	1991.
The unfair practice 	charge does 	not 	state 	a violation of 	the 	EERA
within the 	jurisdiction 	of 	the 	Public 	Employment 	Relations 	Board
(PERB), 	for the reasons that follow.

Warning 	Letter
LA-CO-55 9
July 5, 	1991
Page 	4
Government Code 	section 	3541.5(a) 	forbids 	PERB to 	"issue 	a
complaint 	in respect 	of 	any 	charge based upon an 	alleged 	unfair
practice 	occurring more 	than 	six 	months 	prior to 	the 	filing 	of
the 	charge." 	Your charge 	alleges 	that the Association committed
unfair practices 	by 	entering 	into 	the 	current 	collective
bargaining 	agreement 	in 	1989, 	by allowing the District 	to breach
that 	agreement 	in 	1989-90, 	and perhaps 	by allowing the Greater
San Diego 	Health Plan to 	go bankrupt 	in 	1989-90. 	These 	alleged
unfair practices 	occurred 	more 	than 	six 	months 	before you 	filed
your charge on May 24, 	1991. 	The allegations are therefore
untimely.
PERB 	Regulation 	Section 	32994 	("Agency 	Fee Appeal 	Procedure"),
Subsection (a), provides as follows.
If 	an agency 	fee payer disagrees with 	the
exclusive 	representative's 	determination 	of
the agency 	fee 	amount, 	that employee
(hereinafter 	known 	as 	an 	"agency 	fee
objector") 	may 	file 	an agency 	fee objection.
Such 	agency 	fee 	objection 	shall 	be 	filed with
the 	exclusive 	representative. 	An agency 	fee
objector 	may 	file 	an unfair practice 	charge
that 	challenges 	the 	amount of 	the agency 	fee;
however, 	no complaint 	shall 	issue until 	the
agency 	fee 	objector has 	first 	exhausted 	the
exclusive 	representative's 	Agency 	Fee Appeal
Procedure. 	No 	objector 	shall 	be required to
exhaust 	the Agency 	Fee Appeal 	Procedure where
it 	is 	insufficient on 	its 	face.
You have 	not 	alleged 	facts 	showing 	that 	the Association's 	agency
fee 	appeal procedure 	is 	insufficient on its 	face. 	A complaint
challenging 	the 	amount 	of 	the 	agency 	fee may 	therefore 	not 	issue
until 	you 	exhaust 	that procedure.
You 	have 	alleged 	that 	the Association 	as 	exclusive 	representative
denied 	you 	the 	right 	to 	fair 	representation guaranteed 	by
Government 	Code 	section 	3544.9 	and 	thereby 	violated 	Government
Code 	section 3543.6(b). 	In order to 	state a prima 	facie
violation of 	this 	section of 	the 	EERA, 	a Charging Party must 	show
that 	the 	exclusive 	representative's 	conduct was 	arbitrary,
discriminatory, 	or 	in bad 	faith. 	In United Teachers 	of 	Los
Angeles 	(Collins). 	id.. 	the Public Employment Relations Board
(PERB) 	stated:

Warning 	Letter
LA-CO-559
July 5, 	1991
Page 	5
Absent bad faith, 	discrimination, 	or
arbitrary 	conduct, 	mere negligence or poor
judgment 	. 	. 	. 	does not constitute a breach
of 	the union's 	duty.
In order 	to 	state 	a prima 	facie 	case of 	arbitrary 	conduct
violating 	the duty of 	fair representation, 	a Charging 	Party:
. 	. 	. 	must, at a minimum, 	include an
assertion of 	sufficient 	facts 	from which 	it
becomes 	apparent how or 	in what manner the
exclusive 	representative's 	action 	or 	inaction
was without a 	rational basis 	or devoid of
honest 	judgment. 	Reed District Teachers
Association. 	CTA/NEA 	(Reyes) 	(1983) 	PERB
Decision No. 	332, 	citing Rocklin Teachers
Professional Association 	(Romero) 	(1980) 	PERB
Decision No. 	124.
It 	is 	not 	apparent 	from the 	facts 	alleged 	in your 	charge 	how the
Association's 	actions were without 	rational basis, 	devoid of
honest 	judgment, 	discriminatory or 	in bad 	faith.
For all 	these reasons, 	the 	charge as presently written does 	not
state 	a 	prima 	facie 	case within PERB's 	jurisdiction. 	If 	you 	feel
that 	there 	are 	any 	factual 	inaccuracies 	in this 	letter 	or 	any
additional 	facts 	which would 	require 	a 	different 	conclusion 	than
the 	one 	explained above, 	please 	amend the 	charge 	accordingly.
This 	amended 	charge 	should 	be prepared 	on 	a 	standard 	PERB 	unfair
practice 	charge 	form 	clearly 	labeled 	First Amended 	Charge,
contain all 	the 	facts 	and 	allegations 	you wish to make, 	and be
signed 	under penalty 	of 	perjury by 	the 	charging party. 	The
amended 	charge must 	be 	served on the 	respondent 	and 	the 	original
proof 	of 	service must be 	filed with PERB. 	If 	I 	do not 	receive an
amended charge or withdrawal 	from you before July 	12, 	1991, 	I
shall 	dismiss 	your charge without 	leave 	to 	amend. 	If 	you have
any questions 	on how to proceed, 	please 	call me 	at 	(213)
736-3127.
t=:inn~.rP.lv.	Sincerely.
Thomas J. 	Allen
Regional 	Attorney
TJA:eb
f\